FCC Pulls a Fast One on Net Neutrality, Presenting New Regulations as Fait Accompli to GOP Congress

Last June, when the FCC was careening towards issuing net neutrality rules on its own authority, even on the heels of a tongue-lashing from the DC Circuit in the Comcast decision (holding that the agency lacked authority to impose net neutrality principles on broadband as a deregulated Title I service), Charlie Kennedy (a giant of telecom law who’s a partner at Wilkinson Barker and was an adjunct at the now-defunct Progress & Freedom Foundation) made a bold prediction in a PFF paper. That prediction was today, sadly, proven true with the FCC’s net neutrality proposal. Charlie wrote:

With no clear consensus to be “restored” and no compelling need to overturn the Commission’s de-regulatory classification of Internet access under Title I, there is simply no need for the FCC to undertake—let alone rush—this proceeding. The timing of the NOI’s release and the rapid comment schedule suggest that the agency is simply trying to ram reclassification through as quickly as possible so that the 112th Congress—which seems likely to be even more hostile than the current Congress to the imposition of net neutrality regulation by the FCC—will be presented in January with a regulatory fait accompli. If that regulatory endrun around Congress succeeds, it will be remembered for decades as a pivotal moment in the decline of the rule of law and the rise of a regulatory bureaucracy “freed … from its congressional tether,” as the D.C. Circuit rightly denounced the FCC’s jurisdictional over-reach in Comcast.

In essence, Genachowski is asserting that, despite what the pesky DC Circuit thinks, he already has the authority to impose net neutrality regulation—so reclassification of broadband from deregulated Title I to common-carriage Title II is unnecessary. Talk about an agency freed from its congressional tether! See you in court, Mr. Chairman! And while we duke this out in court, infrastructure investment will stagnate—and consumers will suffer. As Charlie predicted:

Reclassification under the “Third Way” will also be the beginning of the Internet’s “Lost Decade” (or more) of stymied investment, innovation, and job creation as all sides do battle over the legality of reclassification and its implementation. To paraphrase President John Adams: “Great is the guilt of an unnecessary regulatory war.”

And as Adam Thierer points out, so much for the democratic accountability of administrative agencies and the rule of law!

Potential investors in my wireless Internet service provider saw the headline and pulled out. Even if the rules – which would render any small ISP unable to continue in business – are overturned in court, they are concerned that the fight will be long and expensive.